“Docket No. 90-1337 SECRETARY OF LABOR, Complainant, v. FICKS REED COMPANY, Respondent.ALLIED INDUSTRIAL WORKERS UNION, Authorized Employee Representative.OSHRC Docket No. 90-1337DECISIONBefore: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners. BY THE COMMISSION:This case involves the role of employees in settlement negotiations.\u00a0 The Secretaryof Labor (\”Secretary\”) cited Ficks Reed for violating the Occupational Safetyand Health Act of 1970, 29 U.S.C. ? 651-678 (\”the Act\”).\u00a0 On August 3,1990, a little more than two weeks after the Secretary filed her Complaint, theSecretary’s counsel sent a copy of a proposed stipulation and settlement agreement (signedby the Secretary) to Ficks Reed.\u00a0 According to the certificate of service, copies ofthe agreement were served on Commission Administrative Law Judge James Burroughs and MilanRacic of the Allied Industrial Workers of America (\”the union\”), which hadpreviously elected party status.\u00a0 Counsel for Ficks Reed filled in the date ofposting, August 9, signed the agreement and sent it back to the Secretary.\u00a0 The judgereceived the executed agreement from the Secretary on August 27, 1990. He issued an orderaffirming the agreement on August 29, 1990.Also on August 29, the judge received the firstof two letters from Racic, who indicated that he had seen the settlement agreement, butexpressed concern that the union had not been consulted in drafting the agreement. \u00a0He asked the judge to \”order the parties involved to engage in a meaningfuldiscussion with this labor union before executing any stipulations or agreementspertaining to this OSHRC case\” On August 31, 1990, the judge received Racic’sresponse to his order approving the settlement.\u00a0 Racic asked the judge not to approvethe settlement agreement.Commissioner Velma Montoya construed one of theletters as a petition for discretionary review and granted review on the issue of:Should the Administrative Law Judge’s decisionapproving the settlement agreement between the Secretary and the Respondent be set asideon the ground that the Authorized Employee Representative was denied its right ofmeaningful participation in the settlement agreement process?In General Electric Co., 14 BNA OSHC1763, 1990 CCH OSHD ? 29,072 (No. 88-2265, 1990) (\”GE\”), the Commissionrecently addressed the issue of employee involvement in the settlement process.\u00a0 Weconcluded that when the Secretary and an employer seek to settle a case which is pendingbefore the Commission, the extent to which employees participate in settlementnegotiations is largely left to the discretion of the Secretary.\u00a0 We did find,however, that affected employees or their representatives should be given the opportunityto offer input concerning the proposed settlement before it is executed and submitted tothe Commission or a judge for approval.In Boise Cascade Corp., 14 BNA OSHC 1993,1991 CCH OSHD ? 29,222 (Nos. 89-3087 & 89-3088, 1991), we articulated theCommission’s limited role in overseeing employee input in the settlement process.\u00a0 Wenoted that we could not order the method by which the Secretary and the employer receivethe views of employees or the amount of input they receive.\u00a0 We did, however,\”expect [the Secretary and the employer] to make every effort to provide employeeswith the opportunity for input as much as practicable.\”\u00a0 14 BNA at 1996. \u00a0We further stated that \”employees or their representatives concerned about theiropportunity for input\” should \”make their concerns known in a reasonable andprudent manner in order to avoid undue delay of the settlement process.\”\u00a0 14 BNAOSHC at 1998 n.6, 1991 CCH OSHD at p. 39,124 n.6.\u00a0 In addition, the Commission heldthat it would not be proper for the judge to inquire into the provision of employee inputexcept where it appeared that the Secretary had contravened her policy, stated at oralargument, of affording employees an opportunity to present their input before she entersinto any settlement agreement.\u00a0 14 BNA OSHC at 1997, 1991 CCH OSHD at p.39,124.\u00a0 The Commission concluded that in most cases the proper role for the judgewould be to advise the Secretary and the employer of any claim that employees have notbeen given an opportunity for input so that the Secretary and the employer can reconsidertheir positions in light of the claim. 14 BNA OSHC at 1998, 1991 CCH OSHD at p. 39,124.In this case, neither the parties nor the judgewere able to benefit from the developments in GE or Boise Cascade Corp.,which were issued after the judge approved the settlement agreement.\u00a0 Accordingly, inkeeping with the Commission’s policy of affording the parties an opportunity to addressthe effects of intervening precedent, see Truland-Elliot, A Joint Venture, 4 BNAOSHC 1455, 1976-77 CCH OSHD ? 20,908 (No. 11259, 1976), we issue a conditional orderaffirming the judge’s order unless within 20 days from the date of this order, theSecretary or the employer files a motion to withdraw the settlement agreement. \u00a0During this 20-day period, the union may contact the Secretary and the employer concerningthe settlement agreement.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: April 18, 1991SECRETARY OF LABOR, Complainant, v. FICKS REED COMPANY, Respondent, and ALLIED INDUSTRIAL WORKERS OF AMERICA, Authorized Employee Representative.OSHRC Docket No. 90-1337ORDER APPROVING SETTLEMENTRespondent, by letter dated April 26, 1990, fromits counsel, contested a serious citation and \”other\” citation issued to it onApril 17, 1990.On August 27, 1990, an executed stipulation and settlement agreement was received from theparties.\u00a0 The stipulation having been read and considered, it is ORDERED:(1) That the terms of settlement are approvedand incorporated as part of this order;(2) That the serious citation, \”other\” citation, and proposed penalties issuedto respondent on April 17, 1990, are modified and affirmed in accordance with the terms ofsettlement;(3) That respondent’s motion to withdraw its notice of contest, pursuant to the terms ofsettlement, is granted; and(4) That the hearing scheduled in this matter for September 7, 1990, is cancelled.Dated this 27th day of August, 1990.JAMES D. BURROUGHSJudge”